How to Prepare Evidence for a Virginia Custody Case

Discovery

Rule 8:15(c) of the Rules of Supreme Court of Virginia covers J&DR proceedings other than criminal and delinquency cases: the court may, upon motion timely made and for good cause, enter orders in aid of discovery and inspection of evidence as permitted under Part Four of the Rules, except that no depositions may be taken. In support proceedings, the judge may require the parties to file a statement of gross income with supporting documentation (Rule 8:15(d)).

If you need documents from the other parent before the hearing, the request goes to the judge as a motion, and it is up to the court whether to order it.

Subpoenas

On application of a party, the clerk shall issue subpoenas requiring witnesses to attend and testify and to produce records, documents, or other tangible objects at a hearing (§ 16.1-265). Rule 8:13 sets out the timing for requests:

• Requests for witness subpoenas should be filed at least ten days before the hearing.
• Requests for subpoenas duces tecum (for records) should be filed at least 15 days before the hearing, and must be served on each counsel of record, which includes a party appearing pro se (Rule 8:2), on or before the day of filing, with a certificate of service.
• Late requests should not be honored except when authorized by the court for good cause.

Subpoenas duces tecum for medical records are subject to §§ 8.01-413 and 32.1-127.1:03 (§ 16.1-265). In a custody or visitation case, a summons for a teacher or other school personnel who is not a party, if served on school property, may be served only by a sheriff or deputy (§ 16.1-264(B)).

Rules of evidence that come up most

• Hearsay. Hearsay is a statement, other than one made by the declarant while testifying at the hearing, offered to prove the truth of the matter asserted (Rule 2:801(c)). It is not admissible except as provided by the Rules, other Rules of the Supreme Court, Virginia statutes, or case law (Rule 2:802).
• The other parent’s own statements. A statement offered against a party that is the party’s own statement is not excluded by the hearsay rule (Rule 2:803(0)). Texts and emails from the other parent often fall here, but they still have to be authenticated.
• Authentication. The requirement is met by evidence sufficient to support a finding that the item is what you claim it is (Rule 2:901).
• Originals. To prove the content of a writing, the original is required, except as otherwise provided in the Rules or a Virginia statute (Rule 2:1002). Rule 2:1001 defines writings to include electronic recordings and other data compilations.
• Business records. School, medical, and similar records can come in under Rule 2:803(6) when made at or near the time by someone with knowledge, made and kept in the course of a regularly conducted activity as a regular practice, shown by a custodian’s testimony or a certification, and nothing about the source or preparation indicates a lack of trustworthiness. To rely on a certification, you give the other parties written notice and a copy of the record and certification at least 15 days before the hearing, and if a party objects within five days after that, the foundation must be laid by a witness unless the objection is withdrawn. The court can set different times by order (Rule 2:902(6)).
• Excluding witnesses. On a party’s motion the court must exclude witnesses from the courtroom, but each named party who is an individual is exempt as a matter of right (Rule 2:615(a)).

Evidence the court gathers

• The court may order a custody evaluation or an independent mental health or psychological evaluation (§ 20-124.2(D)).
• A guardian ad litem appointed for the child can inspect and copy agency, school, and health care records relating to the child on presenting the court order (§ 16.1-266(G)).
• In a court of record, such as the circuit court, an in camera interview of the child without the parties present is recorded unless the parties agree otherwise (§ 20-124.2:1). The judiciary’s J&DR pamphlet notes that J&DR courts are not courts of record.

Primary sources

Laws, rules and forms change. Check the current version at the source before you file.

• Rules of Supreme Court of Virginia, Rules 8:2, 8:13, 8:15, 2:615, 2:801 to 2:803, 2:901, 2:902, 2:1001, 2:1002 and 2:1101 (full rules PDF)
• Va. Code § 16.1-265, subpoenas
• Va. Code § 16.1-264, service of summons
• Va. Code § 16.1-266, guardian ad litem access to records
• Va. Code § 20-124.2, custody evaluations
• Va. Code § 20-124.2:1, in camera interviews of child
• Va. Code § 20-124.3, best interests of the child
• Form DC-574, Information Considered in Child Custody/Visitation Proceedings
• The Juvenile and Domestic Relations District Court (judiciary pamphlet)